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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NATIONAL RAILROAD PASSENGER :

CORPORATION (AMTRAK), :

:

Plaintiff, :

v. :

:

URS CORPORATION; URS GROUP, INC.; TRISTATE :

ENVIRONMENTAL MANAGEMENT SERVICES, :

INC. t/a TRISTATE ENVIRONMENTAL SERVICES, :

INC. t/a TRISTATE PROBING & DRILLING, INC.; and :

JOHN DOE 1-10 (a fictitious name); and ABC :

CORPORATION 4-10 (a fictitious name), :

: CIVIL ACTION

Defendants, :

: No. 05-4175

and :

:

TRISTATE ENVIRONMENTAL MANAGEMENT :

SERVICES, INC., improperly impleaded as :

TRISTATE ENVIRONMENTAL MANAGEMENT :

SERVICES, INC. t/a TRISTATE ENVIRONMENTAL :

SERVICES, INC., t/a TRISTATE PROBING & :

DRILLING, INC., :

:

Defendant/Third-Party :

Plaintiff, :

v. :

:

KBN GENERAL CONTRACTING; JOSEPH C. :

COLLACHI; ABC CORPORATION 1-10 (a fictitious :

name); JOHN DOE 1-10 (a fictitious name) and the :

UNITED STATES OF AMERICA, :

:

Third-Party Defendants. :

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 1 of 13
 The parties do not dispute that the USPS is an agent of the USA. 1

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MEMORANDUM

Baylson, J. November 21, 2007

I. Introduction

This case involves an allegedly negligent drilling project which damaged underground

cables owned by Plaintiff National Railroad Passenger Corporation (“Amtrak”). Defendant and

Third-Party Plaintiff, TriState Environmental Management Services, Inc. (“TriState”), brought

third-party claims against several third-party defendants, including the United States of America

(“USA”), which moves to dismiss the one third-party claim, for Negligence, filed against it. 

II. Background

A. Factual Background

According to the pleadings, the drilling at issue in this case occurred on United States

Postal Service (“USPS”) property. The drilling was part of an environmental project designed to 1

prepare the property for sale. USPS contracted with URS Corporation and URS Group, Inc.

(collectively, “URS”) to obtain URS’s environmental consulting and project management

services. A USPS employee, Ann Carter, was designated as the Contracting Officer’s

Representative (“COR”) for the project. 

One of URS’ primary tasks was to install groundwater monitoring wells beneath the

paved parking area on the property. To carry out this task, URS subcontracted with two parties. 

URS hired Defendant KBN General Contractors (“KBN”) to “mark out” the locations of the

wells and TriState to conduct the actual drilling. KBN placed the “mark outs” on July 11, 2003. 

On August 7, 2003, TriState began drilling. That same day, the drilling hit underground

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 2 of 13
 This Court granted USPS’s motion to dismiss because the Federal Tort Claims Act does 2

not permit claims against the Postal Service but only against the United States itself. For further

detail, see Doc. No. 50.

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communication and signal cables, owned by Amtrak, and caused the damages that give rise to

this lawsuit. 

B. Procedural History

Plaintiff Amtrak filed its Complaint (Doc. No. 1) on August 4, 2005, against URS,

TriState, ABC Corporation and John Doe. TriState filed a cross-claim against URS (Doc. No. 6)

as well as a Third-Party Complaint against USPS and others (Doc. No. 15). The case was

subsequently placed into suspense (Doc. No. 25) on May 31, 2005 while settlement conferences

continued before Magistrate Judge Strawbridge. The case was removed from suspense on June

1, 2007. USPS filed a motion to dismiss the Third-Party Complaint against it (Doc. No. 37) on

October 13, 2006, and this Court granted that motion on June 14, 2007. See Doc. No. 50. On 2

July 12, 2007, TriState received permission to amend its third-party complaint to add the United

States as a defendant; it did so on July 17, 2007. (Doc. No. 59). On September 24, 2007, ThirdParty Defendant USA moved to dismiss the Amended Complaint. The Court now addresses that

motion. 

C. Third-Party Complaint

TriState’s Complaint against USA alleges, among other things, that USPS, as the agent of

the USA, was negligent by allowing the drilling to occur without knowing the location of all

underground facilities. (Compl. ¶ 68-71.) TriState alleges that USPS employees directed it

where to drill. (Compl. ¶ 19.) TriState’s Third-Party Complaint also alleges that USPS, as the

agent of the USA, did not exercise reasonable care in hiring URS, directing URS’ activities,

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 3 of 13
 As discussed in greater detail below, USA appears to have misunderstood the nature of 3

TriState’s claims against it. 

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hiring its own employees, supervising its own employees, and supplying information to URS

and/or KBN. (Compl. ¶ 73.) 

III. Parties’ Contentions

A. USA

USA first argues that this Court should dismiss TriState’s claim for lack of subject matter

jurisdiction. According to USA, the United States has not waived sovereign immunity for the

negligence of independent contractors, and since TriState is an independent contractor, the USA

is immune from claims based on TriState’s negligence. 

3

USA then argues that TriState can not demonstrate any set of facts under which USA

breached a duty. With this argument, USA essentially states that when it hired UBS, it delegated,

by contract, any responsibility it may have had for locating underground cables to URS. USA

argues that TriState does not support the contention that USA was negligent in hiring URS and

that in fact, URS is a reputable firm with extensive experience. USA claims that by hiring URS,

it severed any liability that could otherwise have reached it. 

Third, USA argues that it was improperly joined under Rule 14. According to USA,

TriState could only bring USA in if USA owed a duty to TriState that differed from any duty

USA may have owed to Amtrak, the main plaintiff. USA asserts that since there was no contract

or “direct relationship” between USPS and TriState, USPS (as agent of USA) does not owe

TriState any duties and thus can not indemnify TriState. USA further contends that the contract

which designated Ms. Carter as the COR was a contract between USPS (as agent of USA) and

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 4 of 13
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URS, and therefore does not create a relationship between USPS and TriState to support Rule 14

joinder. USA also maintains that TriState’s contribution claim must fail because USA and

TriState could not be deemed joint tortfeasors. 

Finally, USA contends that no presumptive truthfulness attaches to TriState’s allegation

that the USA directed TriState where to drill. USA appears to first support this contention by

claiming that such an allegation relates to subject matter jurisdiction and is thus a jurisdictional

fact. USA then supports this contention with a fact-based argument addressing the relative roles

and expertise of USPS employee Ann Carter and TriState. 

B. TriState

TriState argues that subject matter jurisdiction exists because it does not assert that the

USA’s subcontractors were negligent but that the USA’s employees were negligent. Thus,

according to TriState, the USA’s sovereign immunity argument does not apply. 

TriState then maintains that its allegations are sufficient to state a claim because it has

alleged that USA employees were negligent and has argued that a specific employee, Ms. Carter,

breached her duty to “[f]urnish direct technical assistance and guidance to the contractor through

all aspects of the contract.” (Pl.’s Ex. B at Doc. No. 77-2). 

As to USA’s Rule 14 argument, TriState alleges and argues that it and the USA are

indeed joint tortfeasors and thus contribution could be proper. TriState does not advance an

argument in support of its claim for indemnification.

Finally, TriState contends that dismissal at this stage of litigation would be premature. 

TriState argues that discovery, such as a deposition of Ms. Carter, is warranted to explore the

liability of the USA. 

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 5 of 13
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IV. Legal Discussion

A. Legal Standard

USA moves to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1),

and for failure to state a claim, pursuant to Rule 12(b)(6). The standards differ. On a motion to

dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of persuading the Court that

subject matter jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d

Cir. 1991). In determining whether the plaintiff has met its burden on a factual attack of subject

matter jurisdiction, “the trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” Mortensen v. First Federal Savings and Loan

Association, 549 F.2d 884, 891 (3d Cir. 1977). Moreover, “no presumptive truthfulness attaches

to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial

court from evaluating for itself the merits of jurisdictional claims.” Id. 

However, when deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the Court must accept as true all well-pleaded allegations in the complaint and view

them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764

F.2d 939, 944 (3d Cir. 1985). The Court may look only to the facts alleged in the complaint and

its attachments. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir.

1994). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be

granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848

F.2d 398, 401 (3d Cir. 1988).

B. Subject Matter Jurisdiction

As noted above, USA argues that this Court lacks subject matter jurisdiction to hear

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 6 of 13
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TriState’s claims against the USA because the USA is immune from liability for the negligence

of its contractors. In making this argument, USA appears to misunderstand TriState’s allegations

against it. TriState brings a third-party claim against USA alleging that USA’s employees were

negligent, not that USA’s contractors were negligent. USA’s argument that it is immune from

liability for the negligence of its contractors is thus irrelevant – it is not being sued for the

negligent acts and omissions of its contractors, but for its own alleged negligent acts and

omissions. See Compl. ¶¶ 68-73. 

The Court finds that it has subject matter jurisdiction over this dispute. TriState has

brought negligence claims against the United States, asserting that USA employees were

negligent. Such claims are proper because the Federal Tort Claims Act (“FTCA”) waived the

United States’ sovereign immunity for torts committed by its employees acting within the scope

of their employment. 28 U.S.C. § 1346(b). Here, TriState alleges that the USA, through its

agent USPS, was negligent and that USPS employees, specifically Ms. Carter, were negligent

when acting within the scope of their employment. See Compl. ¶¶ 72-73; Pl.’s Opp’n Brief pp.

6-7. Because of the FTCA, USA has waived sovereign immunity in this case and the Court has

subject matter jurisdiction to hear TriState’s claim. 

It is perhaps useful here also to address one of USA’s final arguments – that presumptive

truthfulness does not attach to TriState’s allegation that the USA directed TriState where to drill. 

(Def.’s Brief, p. 17). In support of this argument, USA cites to Mortensen v. First Federal

Savings and Loan Associate, 549 F.2d 884, 891 (3d. Cir. 1977), which clarifies the difference

between various 12(b) standards. Mortensen addresses the standards for 12(b)(1) motions that

factually attack subject matter jurisdiction, 12(b)(1) motions that facially attack subject matter

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 7 of 13
 Mortensen uses the term “factual attack” for challenges to subject matter jurisdiction 4

that dispute the facts which allegedly provide the basis for subject matter jurisdiction. In

contrast, according to Mortensen, when a party “facially attacks” subject matter jurisdiction, the

alleged jurisdictional facts are undisputed. 

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jurisdiction, and 12(b)(6) motions to dismiss for failure to state a claim. When a court considers 4

a factual attack on subject matter jurisdiction, the standard, as noted above and as set forth in

Mortensen, supra, permits the court to evaluate facts relevant to subject matter jurisdiction. See

also 5 C Wright and A. Miller, Federal Practice and Procedure § 1350 (1969). Presumably, USA

argues that it factually attacks subject matter jurisdiction and that this Court should therefore not

view TriState’s allegation that the USA directed it where to drill in the light most favorable to

TriState, the third-party plaintiff. 

However, not all facts are jurisdictional facts. When a party such as USA presents both a

12(b)(1) attack on subject matter jurisdiction and a 12(b)(6) attack on the merits, the facts can be

relevant to either attack, and occasionally to both. When evaluating the facts relevant to

jurisdiction, the court does not attach presumptive truthfulness to the allegations. Id. However,

when facts are not jurisdictional, but go to the merits, the Court does not evaluate them, but

instead presumes them to be truthful. Angelastro, 764 F.2d at 944. 

Here, whether USA directed TriState where to drill is a fact relevant to the allegations of

negligence, in other words, to the merits. Thus, pursuant to the Rule 12(b)(6) standard,

TriState’s allegations that USA directed TriState where to drill must be viewed in the light most

favorable to TriState and presumptive truthfulness indeed attaches.

C. Rule 14

The parties also dispute the applicability of Rule 14, F. R. Civ. P., and whether TriState’s

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 8 of 13
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Amended Complaint against USA is proper. Rule 14 provides that a third party complaint may

be “served upon a person not a party to the action who is or may be liable to the third party

plaintiff for all or part of the plaintiff’s claim against the third party plaintiff.” There is no

controlling precedent by the Supreme Court or the Third Circuit, and the district courts have

taken a wide range of approaches to allowing third party complaints. See Harmelin v. Man

Financial Inc., 2007 WL 3085867, at *2-*3 (E.D. Pa.) (October 17, 2007).

USA cites to cases such as FHF Partners v. KMA Financial Group, LLC, 2007 WL

710287 (E.D. Pa. March 5, 2007), which set out that third-party claims may only be brought

when a third-party defendant is alleged to be liable to the third-party plaintiff, not when the thirdparty defendant is alleged to be liable to the main plaintiff. TriState does not directly address

USA’s Rule 14 argument, but indirectly addresses it by arguing that TriState and USA could be

joint tortfeasors. Under Pennsylvania law, if parties are joint tortfeasors, one may join the other

and assert a claim for contribution. See Foulke v.Dugan, 212 F.R.D. 265, 269-270 (E.D. Pa.

2002). It appears that TriState takes the position that it properly joined USA because it and USA

could be joint tortfeasors, which would justify its claim for contribution against USA. However,

TriState also asserts a claim for indemnification and does not cite law or provide argument in

support of this claim. Contribution and indemnification claims require distinct analyses and the

court will address each in turn. 

1. Contribution

A claim for contribution is only proper under Pennsylvania law when it arises between

joint tortfeasors. See Foulke, 212 F.R.D. at 270 (quoting Kemper Nat’l P & C Cos. v. Smith,

615 A.2d 372, 380 (Pa. Super. 1992)). Joint tortfeasors are “two or more persons jointly or

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 9 of 13
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severally liable in tort for the same injury to persons or property, whether or not judgment has

been recovered against all or some of them.” 42 Pa.C.S. § 8322. “Under Pennsylvania law, two

actors are joint tortfeasors if their conduct ‘causes a single harm which cannot be apportioned . . .

even though [the actors] may have acted independently.” Rabatin v. Columbus Lines, Inc., 790

F. 22, 25 (3d Cir. 1986) (quoting Capone v. Donovan, 480 A.2d 1249, 1251 (Pa. Super. 1984)). 

Here, TriState asserts that it and USA are joint tortfeasors. TriState claims that although

it conducted the drilling, USA directed it where to drill. Compl. ¶ 19. TriState also argues that

USA’s employee, Ms. Carter, negligently omitted material facts that caused the reasonable belief

that drilling would be appropriate at the location where it occurred. Pl.’s Opp’n Brief, p. 10. 

TriState contends that “if TriState should be found negligent, the USA should be found equally,

if not more, negligent.” Pl.’s Opp’n Brief, p. 10. Given these allegations, this Court finds that at

this stage of the litigation, TriState and USA qualify as joint tortfeasors and the damages

allegedly caused by the drilling could not be apportioned if they were both found to be negligent. 

As noted above, under Pennsylvania law, if parties are joint tortfeasors, they can properly assert a

claim against one another for contribution. TriState has done so here. 

2. Indemnification 

“Unlike contribution . . . indemnification shifts the entire loss from one party to another.”

Richardson v. John F. Kennedy Memorial Hosp., 838 F. Supp. 979, 989 (E.D. Pa. 1993). Under

Pennsylvania law, “indemnity is available only under the following circumstances: (1) where

primary versus secondary or vicarious liability is present or (2) where there is an express contract

to indemnify.” Id. TriState does not allege that it and USA had a contract providing for

indemnification, thus for TriState to be indemnified, some secondary or vicarious liability must

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 10 of 13
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be present. USA argues that there is no direct relationship between USA and TriState in order to

form the basis for this secondary or vicarious liability. USA cites to Builders Supply Co. v.

McCabe, 77 A.2d 368, 371 (Pa. 1951), which explains that secondary or vicarious liability

“depends on a difference in the character or kind of the wrongs which cause the injury and in the

nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary

liability exists, for example, where there is a relation of employer and employee, or principle and

agent.” Id. at 370. 

TriState has not alleged that it is in a relationship with USA whereby USA would be

secondarily or vicariously liable to TriState. Thus, the Court can not find that TriState states a

claim for indemnification. See Harmelin v. Man Financial Inc., 2007 WL 2932866, at *5 (E.D.

Pa.) (October 2, 2007). USA’s motion to dismiss will be granted with respect to the

indemnification claim.

D. Delegation of the Duty of Care

USA argues that, by contracting with URS, it “appropriately satisfied whatever duty it

may have owed to TriState, a subcontractor, by providing in the Contract that the contractor,

URS, would be responsible for locating underground obstructions to the drilling.” Def.’s Brief,

p. 14. In support of this argument, USA cites to Bloom v. Waste Management, Inc., 615 F. Supp.

1002 (E.D. Pa. 1985). It is important to note that Bloom addressed a motion for summary

judgment, not a motion to dismiss, and therefore analyzed a developed factual record. Id. at

1006. (“The factual predicate for the Government’s motion is supplied by the contract between

the [parties], an outline of [one party’s] worker safety program, and various affidavits and

depositions submitted by the parties.”) The court in Bloom based its ruling on its view of the

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 11 of 13
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facts presented to it. Presently before this Court is a motion to dismiss, and an undeveloped

factual record. USA’s reliance on Bloom is misplaced. 

USA also cites to another case that does not involve the motion to dismiss standard, the

Pennsylvania case of Brletich v. United States Steel Corp., 285 A.2d 133 (Pa. 1971). In the part

of Brletich that addresses the landowner’s liability, the Supreme Court of Pennsylvania affirms

the lower court’s entering of nonsuit. A judgment of nonsuit is entered after the parties submit

their evidence. As with summary judgment, a judgment of nonsuit is entered when the factual

record is developed. The findings in Brletich were based on a knowledge of the facts that this

Court simply does not have at this stage of litigation. 

As noted above, at this stage of litigation, this Court evaluates whether TriState has stated

a claim, and in doing so, the Court is obligated to view TriState’s allegations in the light most

favorable to TriState. TriState has alleged that USA, through USPS employees, should have

known the location of the underground cables, Compl. ¶ 17, and that USPS employees directed

TriState where to drill, Compl. ¶ 19. Given the principles of notice pleading, these allegations

support TriState’s claim for Neligence. If the USA wishes the Court to view the allegations

otherwise, the USA will need to develop the factual record, as was done in both Brletich and

Bloom. 

V. Conclusion

For the reasons stated above, this Court denies the USA’s motion to dismiss for lack of

subject matter jurisdiction as well as USA’s motion to dismiss on the merits. An appropriate

order follows. 

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 12 of 13
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NATIONAL RAILROAD PASSENGER :

CORPORATION (AMTRAK), :

:

Plaintiff, :

v. :

:

URS CORPORATION, et al., :

: CIVIL ACTION

Defendants, :

: No. 05-4175

and :

:

TRISTATE ENVIRONMENTAL MANAGEMENT :

SERVICES, INC., improperly impleaded as :

TRISTATE ENVIRONMENTAL SERVICES, INC. :

t/a TRISTATE PROBING & DRILLING, INC., :

:

Defendant/Third-Party :

Plaintiff, :

v. :

:

KBN GENERAL CONTRACTING, et al., :

:

Third-Party Defendants. :

ORDER

And NOW, this 21st day of November, 2007, for the reasons stated in the foregoing

Memorandum, it is hereby ORDERED that the Motion of the United States of America to

Dismiss the Amended Third-Party Complaint (Doc. No. 74) is GRANTED as to the

Indemnification claim, but otherwise DENIED. 

BY THE COURT:

 /s/ Michael M. Baylson 

Michael M. Baylson, U.S.D.J.

A:\05-4175 MTD 3d party complaint.wpd

Case 2:05-cv-04175-MMB Document 81 Filed 11/21/07 Page 13 of 13